November 21, 2009

McDonald v. Chicago: revolution or restoration? (Part 5)

By McDonald v. Chicago: revolution or restoration? (Part 5)

Author: Timothy Sandefur

(Part 1; Part 2; Part 3; Part 4)

The leading dissenting opinion in the Slaughter-House Cases was written by Justice Stephen J. Field.

Field was one of the most remarkable characters ever to sit on the U.S. Supreme Court. The first Californian ever appointed to the Court, Field set the record for longest-serving justice, until that record was broken in the 1970s by Justice Douglas. Field was a member of one of the nation's most famous families; his brother David was among the leaders of American law, and his other brother Cyrus laid the first transatlantic telegraph cable. A rugged '49er, Stephen Field is also the only U.S. Supreme Court Justice ever arrested for murder! (In 1883, his bodyguard shot and killed a famous California politician named David Terry; you can read that story here.)

In his Slaughter-House dissent, Field pointed out that the Court's decision was reducing the privileges or immunities clause to virtual meaninglessness. The majority said that the clause only protected certain very specific rights that were already guaranteed by the U.S. Constitution. But if that was the case, Field noted, the privileges or immunities clause was just redundant of the Supremacy Clause. The Supremacy Clause already says that states can't override federal constitutional guarantees. And Field pointed out that the Court was ignoring the history of the common law right to earn an honest living. Everyone has the right to pursue "the ordinary avocations of life," and although the government can regulate business to protect the public, a law like the Louisiana Slaughterhouse Act that doesn't really protect the public; it uses that as a pretext for shutting down hundreds of competitors and giving a preference to the company that the politicans prefer. As we've seen, the English courts had regarded such monopolies as "against common right, and void" since at least the early 17th century.

The right to earn a living as one chose, Field wrote,

is the distinguishing privilege of citizens of the United States. To them, everywhere, all pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally upon all others of the same age, sex, and condition. The State may prescribe such regulations for every pursuit and calling of life as will promote the public health, secure the good order and advance the general prosperity of society, but, when once prescribed, the pursuit or calling must be free to be followed by every citizen who is within the conditions designated, and will conform to the regulations. This is the fundamental idea upon which our institutions rest, and, unless adhered to in the legislation of the country, our government will be a republic only in name. The fourteenth amendment, in my judgment, makes it essential to the validity of the legislation of every State that this equality of right should be respected.

In recent decades, it’s been fashionable to caricature Justice Field as some sort of Snidley Whiplash character—champion of evil, greedy corporations against the innocent working man. In fact, the exact opposite is true. Justice Field was arguing in favor of the rights of workers to earn a living and advance themselves economically in a free market, and against politically influential corporations like the Crescent City Company, that use government power to protect themselves against fair competition. Justice Field understood the central importance of free markets in any free society. When America declared independence, Field wrote, no individual right

was more fully recognized or more completely incorporated into the fundamental law of the country than that every [person] was entitled to pursue his happiness by following any of the known established trades and occupations of the country, subject only to such restraints as equally affected all others. The immortal document which proclaimed the independence of the country declared as self-evident truths that the Creator had endowed all men “with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness; and that to secure these rights governments are instituted among men.”

But even aside from the question of economic freedom, Field wrote, the privileges or immunities clause was central to what the Fourteenth Amendment was intended to accomplish. In another case decided the same year as Slaughter-House, he explained that that clause was intended to encapsulate the theory of “paramount national citizenship”: that American citizens are federal citizens first, and citizens of states only secondarily, and that because their rights—their common law rights, their natural rights, and their constitutional rights—are guaranteed to them by their national citizenship, states have no legitimate authority to override such rights:

[The Fourteenth Amendment] was intended to justify legislation, extending the protection of the national government over the common rights of all citizens of the United States…. It was intended to make it possible for all persons, which necessarily included those of every race and color, to live in peace and security wherever the jurisdiction of the nation reached. It therefore recognized, if it did not create, a national citizenship…and declared that their privileges and immunities, which embrace the fundamental rights belonging to citizens of all free governments, should not be abridged by any state. This national citizenship is primary, and not secondary. It clothes its possessor, or would do so if not shorn of its efficiency by [the Slaughter-House decision], with the right, when his privileges and immunities are invaded by partial and discriminating legislation, to appeal from his state to his nation, and gives him the assurance that, for his protection, he can invoke the whole power of the government.

Now, in McDonald v. Chicago, the plaintiffs are asking the United States Supreme Court to reconsider the Slaughter-House Cases, and restore strength to the privileges or immunities clause. More on what that would mean in our next installment.

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